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Bhanwarlal Vs. Bhulibai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 91 of 1965
Judge
Reported inAIR1972Raj203; 1971(4)WLN416
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 4
AppellantBhanwarlal
RespondentBhulibai and ors.
Appellant Advocate S.T. Porwal, Adv.
Respondent Advocate R.K. Rastogi, Adv.
Cases Referred and Bal Krishna v. D. T. S. Western Railway
Excerpt:
civil procedure code - order 22 rule 4--abetment of appeal--application for bringing legal representatives on record withdrawn--held, appeal abates.;on a plain reading of order 22 rule 4(1), c.p.c., it was obligatory for the appellant to mike an application to cause the legal representatives of the deceased-respondent to be made party to the appeal. admittedly there is no such application in as much as the application made by the appellant on 24th february, 1969, for brinining on record the legal representatives of the deceased mohanlal has been withdrawn by the appellant.;(b) civil procedure code - order 22 rule 4--abatement--whether whole appeal should abate--test of.;there is no escape from the position that the appeal has abated in respect of the interests of the widow's daughter and..........has abated as a whole on account of the failure on the part of the appellant to substitute the legal representatives of the respondent mohanlal, who admittedly died on' 1-5-68, during the pendency of this appeal. in order to appreciate the preliminary objection it may the necessary to narrate a few facts giving rise to this appeal.2. respondents nos. 2 and 8 rekhchand and gokalchand (defendants) obtained a money decree against respondent-defendant no. 4 balmukand. in execution of that decree the house in dispute was auctioned and purchased by the appellant bhanwarlal, objection under order 21, rule 58, c. p. c., was preferred by mohanlal (deceased) son of balmukand, but the same was dismissed. consequently the respondent no. 1 smt. bhuli bai, wife of balmukand, in her personal.....
Judgment:

C.M. Lodha, J.

1. A preliminary objection has been raised in this appeal on behalf of the respondents that the appeal has abated as a whole on account of the failure on the part of the appellant to substitute the legal representatives of the respondent Mohanlal, who admittedly died on' 1-5-68, during the pendency of this appeal. In order to appreciate the preliminary objection it may the necessary to narrate a few facts giving rise to this appeal.

2. Respondents Nos. 2 and 8 Rekhchand and Gokalchand (defendants) obtained a money decree against respondent-defendant No. 4 Balmukand. In execution of that decree the house in dispute was auctioned and purchased by the appellant Bhanwarlal, Objection under Order 21, Rule 58, C. P. C., was preferred by Mohanlal (deceased) son of Balmukand, but the same was dismissed. Consequently the respondent No. 1 Smt. Bhuli Bai, wife of Balmukand, in her personal capacity as also in the capacity of the guardian of her minor son Mohanlal filed the present suit under Order 21, Rule 63, C. P. C., for declaration that the decree in execution of which the property in question has been sold, was in respect of an immoral debt incurred by Balmukand and, therefore, the sale of the suit property in favour of Bhanwarlal was void and ineffective. The suit was resisted by the auction-purchaser Bhanwarlal as well as the decree-holder Rekhchand and Gokalchand.

3. After recording the evidence produced by the parties the trial Court dismissed the suit on 5-12-61. The plaintiff filed appeal in the Court of the District Judge, Kota, who by his judgment dated 8th February, 1965, set aside the judgment and decree of the trial Court and decreed the plaintiffs suit and thereby granted a declaration in the plaintiff's favour that the attachment and sale of the suit property was inoperative and ineffective against the plaintiffs.

4. Dissatisfied with the judgment and decree of the District Judge, Kota, defendant-auction-purchaser Bhanwarlal has come in second appeal to this Court. As already stated above, plaintiff Mohanlal died during the pendency of this appeal on 1-5-68. On 24th February, 1969, the appellant made an application for substituting the names of Smt. Premlata widow of Mohanlal, Smt. Mangla daughter of Mohanlal and Purshottam son of Mohanlal in place of deceased Mohanlal as his legal representatives. Since the application was prima facie barred by limitation, it was submitted by the appellant that he had come to know of the death of Mohanlal on 20th February, 1969, and therefore the delay in filing the application may be condoned.

5. This application was opposed on behalf of the respondents on the ground that the appellant knew of the death of Mohanlal, the very day Mohanlal died, that is, on 1-5-68 and consequently no sufficient ground was made out for condoning the delay. However, when the application came up for orders on 25-2-70, learned counsel for 'the appellant did not press it and got it dismissed as withdrawn, with the result that the name of Mohanlal was struck off from the array of respondents.

6. Now at the time of the hearing of the appeal, a preliminary objection has been raised on behalf of the respondents that the appeal is not properly constituted and has abated on account of the legal representatives of Mohanlal having not been brought on record. It is submitted that the decree granted by the learned District Judge in favour of Mohanlal declaring that the sale of the suit property to the appellant Bhanwarlal was void and ineffective has become final and now if Bhanwarlal's appeal is accepted and the decree passed in favour of the other plaintiff-respondent Smt. Bhuli Bai is set aside it would result in conflicting decrees. It is thus argued that the whole appeal must be dismissed as having abated.

7. On the other hand, learned counsel for the appellant has contended that Balmukand, who was the manager of the joint Hindu family, of which the deceased Mohanlal was also a member, sufficiently represents the interest of deceased Mohanlal even in the absence of his legal representatives having been brought on record. In the alternative it is argued that Mst. Bhuli Bai, respondent No. 1, one of the heirs of the deceased Mohanlal, being already on the record in another capacity, there can be no abatement merely because no formal application for showing Mst. Bhuli Bai as an heir and legal representative of Mohanlal was made. It is submitted that where one of the legal representatives is already on record in another capacity, the appeal will not abate even if there are other heirs and legal representatives and no application for impleading them has been made within the period or limitation prescribed by the Limitation Act In support of this contention learned counsel for the appellant has placed reliance on Mahabir Prasad v. Jage Ram, AIR 1971 SC 742.

8. It may be observed that Mohanlal died after coming into force of the Hindu Succession Act 1956 (Act No. 30 of 1956). Section 6 of the said Act provides inter-alia that when a male Hindu dies after the commencement of this Act, haying at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property, if the deceased had left behind him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenery property, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. It is not disputed that Mohanlal died leaving behind him female relatives specified in class I of the Schedule, viz., daughter, widow and mother. Therefore, the interest of the deceased Mohanlal in the Mitakshara coparcenery properly devolved by succession and not by survivorship. Consequently even if there was a joint Hindu Mitakshara family consisting of Balmukand and his son Mohanlal, a notional partition coupled with devolution of such notionally partitioned property upon the heirs of the deceased Mohanlal will be deemed to have taken place on- the death of Mohanlal and the very nexus of the joint family was gone. This is the inevitable result on account of the serious inroad made into the purview of the old Hindu Law by the Hindu Succession Act 1956. In these circumstances the 'Karta', viz. Balmukand, cannot represent the deceased Mohanlal's heirs, viz. his son, daughter, widow and mother. I am, therefore, unable to accede to the appellant's contention that Balmukand being the 'Karta' of the family represents the heirs and legal representatives of Mohanlal.

9. It is, therefore, necessary to examine the alternative submission made on behalf of the appellant that one of the heirs of Mohanlal, viz., his mother Smt. Bhuli Bai being already on the record in another capacity, it is not necessary to bring on record the other heirs and legal representatives of Mohanlal by making an application within the period of limitation prescribed for the purpose and the appeal will not abate. In this connection reference may be made to Order 22, Rule 4, C. P. C., which would be applicable to appeals also by virtue of Order 22, Rule 11, C. P. C., which provides that in the application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant', a respondent and the word 'suit' an appeal. Order 22, Rule 4, C. P. C., reads as under,--

'Order 22, Rule 4.-- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.'

10. The reply of the learned counsel for the respondents is that the fact that one of the legal representatives of the deceased, is already on record, does not relieve the appellant from making an application for substituting legal representatives of the deceased in terms of Order 22, Rule 4, C. P. C., and since this has not been done, the appeal will abate. In support of his contention learned counsel has relied on the following decisions,-- Lilo Sonar v. Jhagru Sahu, AIR 1925 Pat 123; Basist Narayan v. Modnath Das, AIR 1928 Pat 250; Gauri Shankar Singh v. Smt. Jwalamukhi Devi, AIR 1962 Pat 392.

11. Learned counsel for the respondents has further placed strong reliance on Manidevi v. Ambadan, 1970 Raj LW 47, in support of his argument that since the right to appeal did not survive against the surviving respondents alone, because of the jointness of the decree in favour of Smt. Bhuli ,Bai and the deceased Mohanlal, it was necessary for the appellant to make an application under Order 22, Rule 4 (1), C. P. C., to bring the legal representatives of the deceased Mohanlal on record within the time limit prescribed by law. As has already been stated, the suit was filed by Mohanlal and Smt. Bhuli Bai. It was decreed by the learned District Judge in favour of both. During pendency of this appeal, Mohanlal having died, the right to appeal did not survive against surviving respondents alone. Consequently, on a plain reading of Order 22, Rule 4 (1), C. P. C., it was obligatory for the appellant to make an application to cause the legal representatives of the deceased-respondent to be made party to the appeal. Admittedly there is no such application inasmuch as the application made by the appellant on 24th February, 1969, for bringing on record the legal representatives of the deceased Mohanlal has been withdrawn by the appellant.

12. Learned counsel for the appellant was unable to substantiate his contention that no application is required to be made under Order 22, Rule 4, C. P. C. He relied upon Harakchand v. Khetdan, AIR 1959 Raj 107, in which it was observed that where one of the two legal representatives was already on record, though in different capacity and he was also the manager of the joint family consisting of himself and the other legal representative, the failure to bring the latter on record would not cause the appeal to abate. It is sufficient to point out that the principle laid down in that case has no application to the facts and circumstances of the present case, inasmuch as Mst. Bhuli Bai, one of the legal representatives of the deceased Mohanlal cannot be said to substantially represent the interest of other legal representatives of Mohanlal and so far Balmukand is concerned, as already stated above, the joint family as well as the status of Balmukand as the 'Karta' came to an end with the death of Mohanlal. In this connection it may also be relevant to reproduce the following observations of their Lordships of the Supreme Court in Daya Ram v. Shyam Sundari, AIR 1965 SC 1049,--

'The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives or a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record.'

Their Lordships further observed,--

'The next question is about the effect of the appellant having omitted to include two of the heirs of Shyam Sundari, a son and a daughter who admittedly had an interest in the property, and the effect of this matter being brought to the notice of the Court before the hearing of the appeal. The decisions to which we have referred as well as certain others have laid down, and we consider this is also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally.'

13. In my opinion these observations cannot help the appellant. It is not the appellant's case that after diligent and bona fide inquiry he could not ascertain who the legal representatives of the deceased respondent are. On the other hand he made an application for bringing on record all the legal representatives of Mohanlal and then withdrew it. The case was heard on the question of abatement on 23rd, 24th, 27th and 30th August, 1971 and on 27th August, 1971, learned counsel for the appellant submitted a written application that since Mst. Bhuli Bai one of the legal representatives of deceased Mohanlal is already on record, the appeal cannot abate on the ground that other legal representatives of deceased Mohanlal have not been brought on record. It is remarkable that in spite of the whole position of law having been argued out thread-bare the appellant still insisted on not making a fresh application for bringing on record the other legal representatives of deceased Mohanlal, viz., his widow, daughter and son and insisted that no such application was required. It is indeed unfortunate that the application dated 24th February, 1969, for substituting the legal representatives of Mohanlal was withdrawn and no such application was made subsequently.

14. Learned counsel for the appellant relied solely on the following observations of their Lordships of the Supreme Court in AIR 1971 SC 742 (supra),--

'Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained.'

15. It may be relevant here to point out the facts and circumstances in context of which the aforesaid observations of their Lordships were made. The appeal arose out of execution proceedings. There was a joint decree in favour of Mahabir Prasad, Gunwanti Devi and Saroj Devi. The Subordinate Judge dismissed the application for execution on the ground that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954. Mahabir Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died and Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents. The High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on the record within the period of limitation prescribed by the Limitation Act, the appeal abated in its entirety. Against that order an appeal was taken to the Supreme Court with a certificate granted by the High Court. In these circumstances, in view of the provisions of Order 41, Rule 4, C. P. C., their Lordships of the Supreme Court were pleased to hold that competence of the appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. It was further observed that power may be exercised when other persons who were parties to the proceedings before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant even though other persons are either not impleaded as parties to the appeal or are impleaded as respondents.

16. Thus the case relied upon by the learned counsel for the appellant was one under Order 41, Rule 4, C. P. C., and it was on the particular facts of that case that their Lordship were pleased to observe that no application need be made within the prescribed period of limitation for impleading other heirs and legal representatives of the deceased-respondent. It is settled law that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found. Reference in this connection may be made to Punjab Co-op. Rank, Ltd., Amritsar v. Commr. of Income-tax, Lahore, AIR 1940 PC 230; State of Rajasthan v. Shyam Lal, ILR (1960) 10 Raj 652 = (AIR 1960 Raj 256) and Bal Krishna v. D. T. S. Western Railway, Abu Road, ILR (1963) 13 Raj 638.

17. The aforesaid observations of their Lordships should, therefore, be read and understood in the context of the facts and circumstances of the case in which they are made. The facts of that case are completely distinguishable and the observations extracted above have no application to the facts and circumstances of the case on hand.

18. To conclude, there is no escape from the position that the appeal has abated in respect of the interests of the widow, daughter and son of the deceased Mohanlal.

19. The next question is whether the appeal has abated to the above extent only or has abated as a whole. The test is whether or not the appeal can be decided without bringing into existence two contradictory decrees in the same litigation and if the result is that there may be two decrees contrary to each other in respect of the same subject-matter, the appeal must be held to have abated as a whole. In my opinion if the appeal is allowed only against the surviving respondents, who are on the record, the result would be that there would be two inconsistent decrees -- one decree in favour of the auction-purchaser-appellant against the respondents on the record in respect of the interest of Mst. Bhuli Rai, and the other decree of the lower appellate Court against the appellant in respect of the interests of Mohanlal's widow, daughter and son. Hence, the appeal has abated as a whole and must be dismissed as such.

20. In the result I dismiss the appeal as having abated, but make no order as to costs of this appeal.

21. The cross-objection regarding costs of the Courts below was not pressed. Consequently the same is dismissed without any order as to costs.


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